Reproductive Rights at Risk With or Without Roe

This article appears in the Winter 2019 issue of The American Prospect magazine. Subscribe here.

Recent discussions of abortion rights have been understandably chock-full of apocalyptic imagery and language. Some protesters at the U.S. Capitol in the Trump era have dressed as handmaids à la The Handmaid’s Tale, Margaret Atwood’s story of an ultra-conservative totalitarian government that compels women to have the children of the wealthy and powerful. After Brett Kavanaugh was confirmed to the Supreme Court, many—on both the left and right—assumed that Roe v. Wade was soon to fall. “Roe v. Wade is doomed,”CNN’s Jeffrey Toobin pronounced last June to much media fanfare.

But is the apocalypse that will befall us if Roe is overturned the only thing we should be focusing on? Or are we already there in many parts of the country, where access to abortion has been heavily curtailed?

The dark forecasts may certainly be borne out. The future of abortion rights hangs in the balance of a thoroughly unbalanced Supreme Court. The Court will have many opportunities in the coming years to hand down a decision reversing the protections of Roe—or quietly continue to allow states to strike blows to abortion access at the state level.

And yet, advances in technology and medication hold promise for an entirely different future of abortion, one that does not call up visions of totalitarian governments and the nightmare ways women were (and are) forced to end their pregnancies. Medication abortion, abortion by telemedicine, and even over-the-counter abortion could be options in a different, yet not-too-distant version of the United States.

Currently, though, we’re closer to the nightmare. Indeed, many American women have already been living it.

ACROSS THE COUNTRY, states have passed an unprecedented number of abortion restrictions—more than 400—just since 2010. Without making it completely illegal to get an abortion, these restrictions make getting one as difficult as possible. They may also give us a glimpse of what abortion could look like in the near future.

Many lawyers contend that an outright rejection of Roe is unlikely. (Some even argue that if Roe is struck down, the right would lose a major rallying point.) Instead, they say, the Court will slowly chip away at abortion protections, allowing states to further limit abortion within their jurisdictions, provoking less of a national outcry. After all, this is what’s been happening in a number of states. Abortion law nationwide is a patchwork of policies and procedures, many designed to put up more obstacles to abortion under the façade of protecting women’s health.

That does not mean that the fear for Roe is misplaced. On the contrary, it means that things could soon be getting a lot worse for everyone.

If Roe falls, what is already perilous would metastasize. According to the Center for Reproductive Rights, about half of states have “anti-choice” legislatures that would likely pass abortion bans or severe restrictions if the Court reversed Roe. And in four states, abortion would automatically become illegal, due to trigger bans designed to ban abortion if Roe is overturned. But in 18 others, other laws on the books would also immediately threaten the right to an abortion. Only nine states have protected the right to an abortion in their constitutions.

And if Roe remains, the future will almost certainly still get bleaker, just more quietly. It’s difficult to fully grasp the scope and severity of each targeted regulation of abortion providers (TRAP) law and other regulations designed to limit abortions. A steady stream of restrictions have continually descended from statehouses, among them laws that require abortion providers to have hospital admitting privileges or even specified hallway widths in their clinics. Other restrictions have subjected women to waiting periods, counseling, and multiple trips to the abortion provider.

“What’s really important to emphasize is that even if Roe isn’t actually overturned, the right to access abortion—which is what the decision stands for—can be so severely undermined that access for many, many, many people will be nearly eliminated,” says Julie Rikelman, senior litigation director at the Center for Reproductive Rights.

A number of federal court cases that could be put in front of the Supreme Court offer an opportunity to overturn Roe, but they also offer opportunities to further limit abortion by allowing TRAP laws to be embedded even further into the reproductive landscape of the U.S. “Even if the Supreme Court doesn’t take the step of actually overruling Roe,” says Rikelman, “it can uphold one of the many restrictions that are already out there and essentially signal to the states that it’s going to uphold pretty much every restriction.”

The number of those restrictions continues to grow. The midterm elections saw two states pass ballot initiatives that threaten or could one day wholly eliminate abortion access. Alabama voters passed a constitutional amendment saying that the state recognizes and supports “the sanctity of unborn life and the rights of unborn children, most importantly the right to life in all manners and measures appropriate and lawful.” Right now, the messaging is mostly symbolic, but if Roe falls, the amendment could pave the way for Alabama to outlaw abortion. In West Virginia, voters ended the state Medicaid program’s coverage of abortions. That leaves just 15 states that provide Medicaid funding for the procedure. Due to the Hyde Amendment, passed in 1976, federal funding cannot cover abortions.

This November, just after the midterms, the Ohio legislature enacted a measure that would criminalize abortion providers who perform an abortion if a fetal heartbeat can be detected. Since it’s at roughly six weeks that a heartbeat can first be detected, this would effectively ban the procedure, as most women don’t even know they’re pregnant after just six weeks. This law, the sponsors said, was specifically designed to reach the Supreme Court and challenge Roe—but it could also pave the way for states to ban abortion earlier and earlier.

“IN THEORY, ABORTION is legal,” says Stephanie Ho, a fellow with Physicians for Reproductive Health and a family physician and abortion provider in Arkansas—one of three abortion doctors in the state. “But it’s not accessible.”

This past summer, Arkansas implemented a TRAP law that would have banned medication abortion if the medication abortion provider does not have a contract with an OB-GYN with admitting privileges at a hospital. Medication abortions, a much easier alternative to surgical abortions, are induced by ingesting one or two pills, triggering a process that “with the exception of how the process starts, is completely indistinguishable from a miscarriage,” says Ho. Generally, these pills are only able to be administered up until ten weeks into the pregnancy. After about ten weeks, a surgical abortion is necessary.

The Arkansas law was in operation for two and a half weeks before a court put it on hold by granting a stay. But during that time period, Ho had to turn away more than 40 patients who were scheduled for medication abortions. If patients wanted a medication abortion, they had to travel across state lines, typically to Oklahoma. Ho’s clinic also helped patients navigate where to obtain a surgical abortion. One patient who’d had a medication abortion scheduled when the law was in effect, but went over the maximum ten weeks for medication abortion before the stay was granted, told Ho that she wouldn’t be able to do the surgery. The patient told Ho, “I guess I’m having a baby.”

“The state of Arkansas forced her into having a child when she wasn’t financially capable to do so,” Ho says.

While the law is in legal limbo, the Fayetteville Planned Parenthood facility where Ho works is still looking for a contracting physician to meet the terms of the law. It’s difficult to find one because some of the OB-GYNs in the state work for religious hospitals that don’t perform abortions; others “didn’t want the stigma of being associated with Planned Parenthood,” says Ho.

Another restriction in Arkansas mandates abortion providers to tell patients falsehoods about their abortion. “I’m required to tell my patients that it’s possible to reverse their medication abortion, even though there is absolutely no credible evidence that supports that,” Ho says. “[The state is] using my mouth to tell their lies.”

Some of Arkansas’s other restrictions include a 48-hour waiting period after the mandated counseling (“I have never met a patient who hadn’t already been contemplating her decision for days or weeks,” says Ho) and parental consent before a minor can have an abortion. Two other restrictive laws are currently stayed: one giving the father of the fetus the right to sue the abortion provider, the other requiring that the fetal tissue be preserved.

“It’s important to think about all the different restrictions together. The reason that so many people have so little access to abortion is that barriers on top of barriers pile up,” Rikelman notes. “[Some states] don’t just have one abortion restriction, they have many abortion restrictions. And they’re passing more every year.” A handful of states have 20 or more abortion restrictions.

These restrictions not only build on each other, but they create geographic, financial, and other barriers to people seeking abortions.

A recent study from Advancing New Standards in Reproductive Health, a research group at the University of California at San Francisco, mapped access to abortion clinics discoverable by online searches. They found 27 “abortion deserts” in the United States, urban centers where people must travel more than 100 miles to reach a clinic that provides abortions—and these are urban areas; rural access can be much worse. Rapid City, South Dakota, was the urban center farthest from an abortion clinic, at 318 miles.

The state-based restrictions mean that if Roe were to fall or be weakened, the distances women might have to travel would greatly increase. Ho’s clinic made referrals to clinics in Missouri and Oklahoma, but those states also have strict abortion restrictions. Oklahoma requires a waiting period, which likely means hotel stays in a distant city. Missouri has only one abortion clinic in the entire state.

If the number of states effectively curtailing abortion continues to mount, those regions and states with fewer abortion restrictions may see an influx of people traveling across state lines to access services. In fact, this is already happening. In 2017, more than 5,500 women travelled to Illinois from out of state to obtain an abortion. If Arkansas’s medication abortion law is upheld by the courts and other restrictions are implemented in Oklahoma and Missouri, an Arkansas woman seeking the procedure would need to travel all the way to Illinois.

But not everyone can travel to access an abortion—particularly low-income people who can’t afford to travel or to miss work. In 2014, three in four women who obtained abortions had low incomes. And as pervasive differences in health-care access and income persist for people of color, people who don’t ascribe to the gender binary, and transgender people, it is much more difficult for these marginalized groups, too, to access abortion. “Every woman falls on the spectrum [of marginalization] in a different way and therefore their access is impacted in a different way,” Jen Villavicencio, an abortion provider in Michigan, says. “A wealthy white woman in Ann Arbor has very different access issues than a woman of color living in the rural Upper Peninsula [of Michigan].”

Abortion restrictions, says Ho, are “essentially perpetuating poverty—you’re forcing women who know they’re not in a position to take care of a child … to give birth.”

ONE OF JULIA MCDONALD’S favorite parts about working at Maine’s northernmost abortion clinic is driving through what she calls “the most beautiful woods in the country” to get to the clinic in Bangor. In the fall, she passes “autumn leaves in all their glory.”

McDonald, a fellow with Physicians for Reproductive Health, is a full-spectrum family-medicine doctor who provides outpatient care to babies, children, and adults, and who also provides abortion services at two independent health centers, one in Augusta and one in Bangor.

“The main challenge we face in Maine has to do with geography.” Maine, McDonald points out, is one of the least densely populated states in the country. “We have a lot of woods and a lot of roads,” she says, “and not a ton of people in population centers.” The state’s three abortion clinics are all located in the southern and central parts of the state. McDonald says that most of her patients come from outlying towns, driving long distances to access all the necessities for reproductive care: ultrasounds, blood work, lab work. Even more problematic, the farther from the population centers, the poorer the towns get.

So abortion access isn’t so easy even in states like Maine that have few abortion restrictions. Maine is one of the nine states that have the right to an abortion as a statutory protection should Roe fall.

In every state, the access problem is compounded not only by the closures of abortion clinics, but also by the shuttering of obstetrics wings of hospitals or entire hospitals in rural areas. Over the past several years, a growing number of rural hospitals have closed due to financial troubles—fewer physicians, fewer patients, fewer patients who can pay, particularly in states that didn’t expand Medicaid. These clinics and hospitals have been disproportionately closing in the South and the Midwest—where, of course, the most abortion restrictions are concentrated.

Despite those closures, there are still far more hospitals in the United States (roughly 5,500) than there are abortion clinics (800). But only 4 percent of abortions are performed in hospitals. “Because of how abortion is restricted in this country, abortion care has been very much siloed away from the traditional health-care system [and into] free-standing clinics,” says Sanithia Williams, a fellow with Physicians for Reproductive Health and a family planning fellow and abortion provider at the University of California at San Francisco. “And just because of the logistics of [operating clinics], those are most often located in urban areas and larger cities.”

Weaving abortion into the traditional health-care system would not only reduce the stigma attached to abortions—normalizing what is already a normal and common procedure—but would also make it easier for those in rural areas to access abortion.

In an ideal future, says Villavicencio, “there won’t be abortionproviders. There will be health-careproviders. … It will become part of the typical reproductive health care that we offer.

An abortion procedure could be considered as common as giving birth. In rural Alaska, because medical clinics are so spread out, people can access transportation subsidies and stay in state-funded housing when they travel to give birth. What if this were replicated in other states across the U.S.—and what if it was replicated for abortion care too?

THOUGH ACCESS TO ABORTION is increasingly challenging, there have been grassroots efforts to make paying for the procedure easier for low-income people. Sometimes, access requires helping women meet the cost of the actual medical service and the costs of missing work or needing child care (the majority of women who get abortions already have children).

“Roe has never been a promise for abortion access due to cost, geography, and insurance,” says Yamani Hernandez, executive director of the National Network of Abortion Funds (NNAF), a network of about 70 autonomous funds across the country. Abortion funds “exist to help make [abortion] access a reality,” not only by helping people in need of abortions pay for the procedure, but also, when possible, assisting with the costs of child care and lodging, even providing home stays.

But abortion funds are invariably unable to meet all their financial demands. In 2017, abortion funds within NNAFreceived calls from approximately 150,000 pregnant women seeking help with paying for their abortions, Hernandez says. Yet those funds were able to support just over one in six of those callers—28,000.

One of the funds in the network is the West Fund located in El Paso, Texas. The West Fund was created in 2013 during the debate surrounding Texas’s infamous HB2 law, which required abortion providers to have hospital admitting privileges, and which resulted in the closure of more than half of Texas’s abortion clinics. (The Supreme Court overturned HB2 in 2016, but most of the clinics that were forced to close have not reopened.) Between 2014 and 2016, the number of abortions performed in Texas declined by about 14 percent.

Callers seeking help leave a message for West Fund volunteers, who then determine how much the caller needs and how much West Fund can help. Many funds have strict eligibility requirements, but the West Fund has few—people just need to have their abortion appointment scheduled and be in the greater West Texas region.

After a patient’s appointment, West Fund sends money covering part of the abortion directly to the clinic. The group doesn’t yet offer support for things like travel costs and child care, but it’s raising funds in hopes of doing that.

The organization typically funds about 30 people a month, with its subsidies generally ranging from $25 to $150. In October, however, the fund had to increase its budget because it received more requests than average, and two that Alexis Akle, West Fund’s helpline manager, termed “extreme situations” that required more funding than usual.

“It doesn’t matter [why] you’re deciding to get an abortion. We will never ask why,” says Akle. “We will just give you the money and try to help you as much as we can.” The fund has even been able to fund people from Ciudad Juárez, across the border in Mexico.

Akle points out that El Paso, one of the poorest cities in the country, not only provides inadequate access to abortion, but also limited access to sex education and health care. “We don’t have access to the simplest things,” she says, and as a result, “we have a lot of people falling through the cracks of this system.”

The clinic that the West Fund works with is located in Albuquerque, New Mexico—roughly a four-hour drive from El Paso. Other, closer clinics that the West Fund had worked with have closed. (Planned Parenthood just reopened in El Paso after having been closed for about a decade, and soon should be offering abortion services.)

THE EMPHASIS ON Roe is completely understandable, but it’s insufficient when so many women currently don’t have access. Moreover, Roe may not be central to the alternative futures some abortion advocates imagine.

“[Roe] is not the best we could have done,” says Monica McLemore, an assistant professor in the Family Health Care Nursing Department at the University of California at San Francisco, as the ruling clearly does not have the teeth to ensure that anyone who wants an abortion can receive one. “Let’s say all our progressive fantasies come true—what are we ready to ask for?”

Advances in medicine and technology may provide alternatives to the chilling possibility of curtailing legal abortions, and the realities already impeding them. And medication abortion, the type of abortion that Arkansas tried to limit, would likely play a big role in the ultimate progressive fantasy.

“I think that the future for abortion provision is in some ways hopeful,” McDonald, the abortion provider in Maine, says. “With the internet and the spread of technology, women have access to more information and hopefully increased access to medication abortion. The future of medicine is going to be decentralized.”

Many rural communities in the United States already are receiving “telemedicine” and “distance medicine.” Video conferencing with doctors and other technology is a way to “bring excellent and safe patient care closer to patients’ doorsteps who live far away [from urban centers], rather than requiring them to drive into cities,” says McDonald.

AP Photo/Evan Vucci

Pro-choice activists celebrate during a rally at the Supreme Court on June 27, 2016, after the Court struck down Texas' widely replicated regulation of abortion clinics.

There are a number of ways to safely have a medication abortion—and the very simplicity of inducing abortion through medication provides opportunities for abortion to be administered remotely. A clinician—not even a physician—could simply supervise the process through a video conference, which is already how some people in rural communities get abortions (though currently, 19 states mandate that a clinician be physically present to administer the procedure).

But a physician or clinician may not even be necessary for medication abortion. “We need to get away from the medicalization of abortion care,” says McLemore, citing the research on the safety of self-managed abortion, which is also growing in popularity. Canada recently approved an abortion pill that people can pick up at the pharmacy with a prescription. They must meet with the prescribing clinician, but can take the drug at home. McLemore believes that due to its safety, the abortion pill should be available over the counter.

In some countries, people have long been able to discreetly receive medication abortion pills in the mail—and administer the abortion themselves without the presence of a doctor. An academic study of women in Ireland who used a service that provides pills found that “outcomes compare favorably with [those] in clinic protocols.” The physician who started the service fills the prescriptions herself, and the service generally sends the pills to countries where abortion has been outlawed.

But abortion by mail has now come to the United States via a new service started by that same physician. The pills cost $95 and are available to women who are less than ten weeks pregnant, all of whom the service screens for eligibility. Until recently, the founding doctor had refrained from operating in the United States out of fears that the anti-choice movement would shutter her operation.

“It’s really important that the language that we use doesn’t demonize self-managed abortion,” says Villavicencio. “With the appropriate instruction, women can take medication and induce their own abortion in a safe manner. It’s not 1973 anymore. People have access to all the information they could possibly want. Self-managed abortions are going to be a huge part of the future one way or another.”

“SOMETIMES PEOPLE just get really [focused] on having abortion access, but there’s a lot more to [reproductive justice],” Akle with the West Fund says. “It encompasses all parts of life [and] any choice—whether it’s getting an abortion, having a child, getting access to contraceptives, or getting pap smears.” Winning true reproductive justice, McLemore adds, requires promoting paid family leave and health-care expansion. It’s no surprise that the states with the worst abortion access are also those with the worst policies relating to paid leave, and those that did not expand Medicaid.

Until (and unless) we can do better, Roe is what we’ve got, and the immediate future doesn’t look bright.

Many abortion advocates are trying to strengthen abortion rights in the safer states to ensure that there are at least some places where people can access the procedure. Advocates and providers are lobbying to codify Roe in a number of states, and in states where that’s not politically possible, Villavicencio says, “There’s some interest in at least pursuing anti-criminalization laws. … We don’t want to put women in jail for inducing their own miscarriages,” she says. “It’s a way to preempt some of the other laws that might be coming.”

No one can be sure of what’s coming. What we can be sure about is that multitudes of women can’t readily access abortions now, with Roe still on the books.

“I don’t want to focus on [Roe],” says Williams, “at the expense of thinking about the ways in which we continue to have such poor access to abortion for so many people.”